February 28, 2014






State, tribal elver deal unravels
by Edward French


     The tentative agreement that had been reached between the state and the Passamaquoddy Tribe for the upcoming elver fishery fell apart during a work session of the legislature's Marine Resources Committee on February 19. During the session, the committee voted 9-1 to recommend a bill that would require that all fishermen, including tribal fishermen, be limited to individual catch quotas, a restriction that the tribe has opposed while preferring other management measures.
     The day before the work session, tribal officials sent a letter to the committee to respond to concerns that had been raised earlier by the Maine Attorney General's Office over tribal and non-tribal members being treated differently under the law. The letter provided examples of memorandums of agreement used by other tribes and examples of current Maine statutes where tribes are treated differently from other citizens in the state. In the letter, Chief Joseph Socobasin of Indian Township and Chief Clayton Cleaves of Pleasant Point stated that a memorandum of agreement between the tribe and the state for the elver fishery "does not create a separate class of citizens but respects the state's institutional and political classification of tribal citizens and serves to enhance tribal-state relations through a bilateral and constitutional agreement."
     Newell Lewey of the Passamaquoddy Joint Tribal Fisheries Committee comments that the legislative committee's recommendation "hinders our ability to manage eels the way we need to," since the tribe has favored open access to the fishery with a total allowable catch (TAC) and has not favored individual catch quotas. Lewey is not sure what the tribal government will do now. The joint tribal council, which has not yet scheduled a meeting to reconsider the issue, would have to approve any changes to the tribe's fisheries plan. Because tribal fishermen will be using the Department of Marine Resources' (DMR) swipe card system, if they don't comply with legislation that is enacted into law they won't be able to sell any elvers to dealers.
     During the February 19 work session, Rep. Wayne Parry of Arundel said he had "a real problem" with the Passamaquoddys being able to issue an unlimited number of licenses, while the state has a cap of 432 licenses for the limited entry fishery. He said that non-tribal members "are getting cut severely" in terms of how much they can catch, while the tribes are "getting an increase in quota." Rep. Parry claimed that last year the tribe issued 575 licenses after the state had enacted a law limiting the tribe to 200 licenses.
     Passamaquoddy Vice Chief Clayton Sockabasin of Indian Township pointed out that the tribe last year had imposed restrictions on the fishery by tribal members to reduce their landings, including limiting fishermen to only one fyke net and requiring that fyke nets be at least 30 feet apart on a river, thus reducing the number of nets. "We did last year what we said we were going to do," he told Rep. Parry. The tribe issued its licenses before the bill limiting the tribe to 200 licenses was signed into law, and the tribe never agreed to the state's limit on licenses. Sockabasin added that the tribe would follow its plan this year, too. However, as the terms of the negotiated agreement become "distorted" by the committee, "we will have to oppose" the legislation. Instead of joint management of the fishery, the state is "dictating to the tribe that this is what you're going to do."
     Sockabasin explained that the tribe views the fishery in a different way from how the state sees it, with all tribal members having a right to access the fishery. "But we take seriously our responsibility to manage the fishery," by using a quota. Also, under the Passamaquoddy Fisheries Management Plan that has been approved by the joint tribal council, the tribe will not be allowing the use of fyke nets this year. In addition, the tribe's total allowable catch will be reduced by more than half, from 3,600 to 1,650 pounds.
     Rep. Mick Devin of Newcastle said that, since the tribe is relinquishing the use of fyke nets, he was not opposed to the tribe issuing an unlimited number of dip net licenses.
     Senator Chris Johnson, the Senate chair of the committee, noted that the attorney general's office had said the agreement that the tribe and state had reached would present a significant enforcement issue because of the Constitution's equal protection clause. Because the DMR therefore could not support the agreement, the legislation was changed to have individual quotas for tribal members. instead of a compromise plan. While the joint tribal council had previously approved only a total allowable catch with no individual quotas, at a February 11 meeting the council, to satisfy concerns the AG's office had previously raised, approved a compromise proposal to allow an open derby fishery until 80% of the tribe's quota had been reached, and then the tribe's fishery would be converted to an individual quota system.
     Rep. Elizabeth Dickerson of Rockland noted that other legislative committees have set policy that is in opposition to recommendations from the attorney general's office. "It's up to us to define policy," she said, and then the attorney general's office would have to defend the law in court. She asked why the committee would amend the proposed legislation when there is no case law to support the recommendations of the AG's office.
     Senator Johnson noted that because the fishery is at risk of being shut down by the Atlantic States Marine Fisheries Commission, the ability to enforce landings is important in keeping the fishery open and the AG's office has indicated that the earlier proposal would "throw a wrench" into the state's enforcement efforts.
     The AG's office told the committee that, any time tribal and non-tribal fishermen are treated differently, equal protection issues will arise, although a court would consider reasons for why they were being treated differently. Passamaquoddy attorney Corey Hinton then picked up on that point, observing that, as long as there is a rational basis for a policy, it likely would survive court scrutiny. Since the tentative agreement between the tribe and the DMR is based on a reasonable consideration of policy goals, the tribe is continuing to push for a cooperative agreement, he said. Pointing out that the AG's office's issue may be based more on whether the state has the resources to enforce the law, he said a lack of resources "shouldn't up-end the agreement."
     Marine Resources Commissioner Patrick Keliher, though, stated that the equal protection clause can be a defense in court. "We need to know the summonses are enforceable," he stated, adding that the DMR could not support an agreement if it could not be enforced.
     Keliher said that the Marine Patrol could enforce the laws if the tribe has a dip-net only fishery, but if 2,000 tribal members were licensed "enforcement of the overall fishery would be difficult." He added that the DMR would need information from the tribe about the licenses issued before the season began and an understanding that tribal members couldn't change the type of license they were issued. Concerning the issue of the tribe having unused quota at the end of the season if individual quotas are issued, Keliher said that a system to transfer quotas for both tribal and non-tribal members could be set up, although it would be difficult to track the individual quotas then.
     Jeffrey Pierce, executive director of the Maine Elver Fisherman Association, alleged that last year there were problems with Passamaquoddys, "with an urban pack mentality," ousting non-tribal members from streams. He stated there would be "problems in the brook" if non-tribal fishermen "are being ousted." Rep. Dickerson told Pierce that she was offended by his use of the term "urban gang mentality." Later, she also asked for members of the public at the work session to stop making threatening remarks about "violence on the river."
     When asked by Senator Johnson if any of the association's members had voluntarily switched to using dip nets only, as the Passamaquoddys are doing, Pierce replied that they had not.
     Bill Milliken of Jonesport, a member of the elver association, maintained that non-tribal elver fishermen are giving up a portion of their catch to other fishermen. Because dealer logs reported 18,253 pounds had been harvested last year, while harvester logs reported only 14,000 pounds, harvesters should have to reduce their overall catch by only about 16% to be at the 11,749-pound TAC that will be set for this year. Instead, they will have to reduce their catches by 35%. The DMR believes that the difference between the harvester and dealer reports was caused by the illegal importation of elvers that were poached in other states.
     With the committee having little issue with the enforcement sections of the bill, the members decided to place those sections in another bill, LD 1723, leaving only the quota and licensing sections in LD 1625. The committee will hold a work session on LD 1723 on March 3 and is expected to vote out LD 1625 after LD 1723 is approved.
     LD 1625 will place a nominal limit of the Passamaquoddys not being able to issue more than six fyke net licenses. Under the legislation, the Wabanaki tribes will first be given the opportunity to reach an agreement among themselves for dividing up a total Wabanaki TAC of 2,500 pounds. If an agreement is not reached, then the tribes would have the following quotas, which will be converted to a percentage of the state's total TAC: Passamaquoddys, 1,650 pounds; Penobscots, 750 pounds; Maliseets, 130 pounds; and Micmacs, 46 pounds. The bill also will allow for two licensed elver fishermen to help each other with a fyke net, if the owner of the net is present. Rep. Parry will issue a minority report, which would limit the Passamaquoddy to 200 licenses, with all fishermen reducing their individual catches by the same amount of 35%.


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